Court File and Parties
Court File No.: CR-15-00008724 Date: 2017-04-06 Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – Antonio Ricciardi Defendant
Counsel: Joanne McIntyre and Michelle Rumble, for the Crown Jessica Sickinger and Jeffrey Goldglass, for the Defendant
Heard: February 23, 2017
Ruling on Application
Di Luca J.:
[1] Mr. Ricciardi stands charged with 22 offences involving allegations of attempted sexual assault with a weapon, attempted sexual assault, attempted kidnapping, robbery, unlawful confinement, carrying a concealed weapon, wearing a mask with intent to commit an indictable offence, assault, obstruct police, criminal harassment and fail comply with bail.
[2] Mr. Ricciardi brings this pre-trial application challenging the warrantless seizure of an item of his clothing seized during a Court appearance.
Overview of the Alleged Offences
[3] On July 19, 2014, Ms. S.N., aged 55, was attacked at knifepoint as she entered her car which was parked at the Hillcrest Mall in Richmond Hill. The attacker threatened to kill her and told her he wanted to take her somewhere. Ms. S.N. was able to escape. Her attacker also fled the scene with her purse and keys, leaving behind a significant quantity of cash. Four days later, Mr. Ricciardi was arrested when he attended the lobby of Ms. S.N.’s apartment building, holding her key chain in his hand. He also had a knife strapped to his body. On July 24, 2014, police executed a search warrant on Mr. Ricciardi’s residence. They found Ms. S.N.’s purse.
[4] On January 26, 2015, C.V., aged 26, was working alone at F[…] bridal boutique in Toronto. That afternoon, a man entered the store and indicated that his brother was getting married and that his fiancé wanted a gown. That same man returned to the store later that afternoon and approached Ms. C.V. who was at the back of the store. He punched Ms. C.V. in the face and held a knife to her as she screamed. He told her to lie down on her stomach and threatened to kill her. The attack was interrupted when someone else entered the store. The attacker escaped though his various movements were captured on a number of surveillance cameras. It is alleged that Mr. Ricciardi is the man seen on the cameras and is also the attacker.
[5] On February 11, 2015, Ms. G.E., aged 68, was attacked in her third floor apartment after returning from Hillcrest Mall. The man who attacked her is seen on surveillance video as he follows her in the lobby, then onto and then out of the elevator. Ms. G.E. was able to fight off her attacker. The next day, the building superintendent observed a man he believed to be the attacker in the building. He later saw the man again outside the building. He and Ms. G.E. followed the man and took his picture. It is alleged that Mr. Ricciardi is both the attacker and the man in the picture.
[6] The Crown also alleges that between December 30, 2014 and February 12, 2015, Mr. Ricciardi posted a number of fictitious job ads on Craigslist. The jobs ads were mainly for jobs in the restaurant and modeling industries. Many women responded to the advertisements. Three women, V.C., T.F. and R.A., provided photos of themselves and agreed to meet for an interview. No meetings ever took place. It is alleged that Mr. Ricciardi is the person behind the fictitious job ads and scheduled meetings. The Crown alleges that the purpose of the ads was to attract potential victims for sexual offences.
The Seizure of the Applicant’s Clothing in Court
[7] On May 2, 2016, the Applicant was in Court for his preliminary inquiry. Detective (Det.) Sedgewick observed him to be wearing a black “hoodie” style sweatshirt with white markings on the sleeves. According to Det. Sedgewick he believed that the sweatshirt was similar to, if not the precise sweatshirt seen in a photograph taken during the execution of a search warrant following Mr. Ricciardi’s arrest for the first set of offences. Det. Sedgewick also believed that the sweater was similar to the one observed in certain surveillance videos and a crime bulletin photo relating to the F[…] incident. On the basis of these observations, Det. Sedgewick determined that he had reasonable and probable grounds to believe the sweatshirt was evidence in respect of these offences.
[8] Following consultation with the Crown, a request was made to Rose J., the justice presiding over the preliminary inquiry, to photograph the Applicant wearing the sweatshirt in the courtroom. During brief submissions on the issue, Rose J. asked the Crown for some authority supporting its request to take a photograph of Mr. Ricciardi and indicated that he was not inclined to permit the photograph. The Crown declined to pursue the matter further and the “motion” was noted as abandoned. The Crown also indicated that there were “certain other steps” that could be taken.
[9] At a break in the proceedings, Det. Sedgewick approached Mr. Ricciardi who was seated in the prisoner’s dock and asked him to remove the sweatshirt. Det. Sedgewick was assisted by at least one other officer. Following an exchange of “pleasantries” during which the Applicant called the officer an “asshole,” the sweatshirt was removed from the accused and seized. Defence counsel noted for the record that the accused was not consenting to the seizure of the sweatshirt.
[10] Det. Sedgewick observed that the sweater Mr. Ricciardi was wearing in Court did not have a white drawstring which appeared in the photos and surveillance video. Det. Sedgewick knew from experience that items capable of being used as a ligature would be removed from a detainee’s clothing, and he believed that the white draw string had been removed by correctional staff. He pursued the matter by attending at the Central East Correctional Centre where he was shown a plastic bag containing Mr. Ricciardi’s possessions. Jail staff refused to give Det. Sedgewick access to Mr. Ricciardi’s property bag in the absence of a warrant. Det. Sedgewick eventually obtained a warrant but the white draw string was not located in Mr. Ricciardi’s property.
Position of the Parties
[11] The onus of justifying a warrantless seizure falls on the Crown who, in this case, seeks to rely on the authority of s. 489(2) of the Criminal Code. For ease of reference, I will set out both s. 489(1) and (2) of the Criminal Code as there are relevant differences between the two subsections:
Seizure of things not specified
489 (1) Every person who executes a warrant may seize, in addition to the things mentioned in the warrant, any thing that the person believes on reasonable grounds
(a) has been obtained by the commission of an offence against this or any other Act of Parliament;
(b) has been used in the commission of an offence against this or any other Act of Parliament; or
(c) will afford evidence in respect of an offence against this or any other Act of Parliament.
Seizure without warrant
(2) Every peace officer, and every public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, who is lawfully present in a place pursuant to a warrant or otherwise in the execution of duties may, without a warrant, seize any thing that the officer believes on reasonable grounds
(a) has been obtained by the commission of an offence against this or any other Act of Parliament;
(b) has been used in the commission of an offence against this or any other Act of Parliament; or
(c) will afford evidence in respect of an offence against this or any other Act of Parliament.
[12] Briefly stated, the Crown’s position is that Det. Sedgewick did not conduct a warrantless search. Rather, Det. Sedgewick merely seized an item which he believed on reasonable and probable grounds was evidence in respect of the offences before the Court. The Crown notes that Det. Sedgewick was lawfully present in the courtroom and was acting in the course of his duties by assisting the Crown with the prosecution of the matter at the preliminary inquiry. According to the Crown, the fact that the accused was wearing the sweatshirt, had to be instructed to remove it, and required the assistance/intervention of officers for this purpose does not convert the seizure into a search and seizure. The Crown draws a distinction between seizing an item of evidence visible on an accused person and searching the accused for items of evidence. On this analysis, the Crown submits that an officer would be free, under the authority of s. 489(2), to seize a sweatshirt on an accused person, but would not be permitted to simply lift the sweatshirt to determine what the accused was wearing underneath.
[13] Mr. Ricciardi’s position is that he was subjected to a search and seizure and that s. 489(2) is restricted to “seizure” of evidence only. He also submits that the conduct of the seizure inside a courtroom after the request to photograph him had been denied by the presiding Justice is unreasonable. Mr. Ricciardi submits that the police could simply have obtained a warrant as is often the case when the police seek to seize items held at detention centre. That said, the Applicant does not challenge the officer’s belief that the sweatshirt was evidence in respect of an offence.
The Scope of s. 489 of the Criminal Code
[14] Section 489 of the Criminal Code creates a seizure power that can be used in certain circumstances. Under s. 489(1) any person executing a search warrant may seize, in addition to the items listed in the warrant, other items which the person believes on reasonable and probable grounds are evidence of an offence. Section 489(2) creates a related power of seizure which applies to peace officers and other appointed public officers who are lawfully present in a place executing a warrant, or otherwise in the course of their duties. The seizure power under s. 489(2) appears different than the seizure power under s. 489(1). While s. 489(1) applies to “any person”, it is restricted to situations where that person is executing a search warrant. By contrast, s. 489(2) applies only to a “peace officer” or specified “public officer.” However, it applies where the officer is lawfully present in a place pursuant to a warrant or “ otherwise in the execution of duties ”. Under s. 489(2), the seizing officer does not need to be engaged in the execution of a warrant, he or she merely needs to be lawfully present in a place in the execution of duties.
[15] The genesis of s. 489 would appear to be the common law “plain view” doctrine, which authorizes police to seize items failing outside the scope of a warrant in cases where the items are inadvertently discovered in plain view and the nature of the item is immediately obvious to the searching party, see: R. v. Spindloe, 2001 SKCA 58 and R. v. Chaisson, 2005 NLCA 55. Case law interpreting s. 489 suggests that while the historical roots of the section are the “plain view” doctrine, the section is not a mere codification of the doctrine. Rather, it exists as an independent statutory seizure power and is not restricted to the constituent elements of the “plain view” doctrine, see: R. v. Bottineau, 2011 ONCA 194 at para. 74-76, R. v. L.F., (2002), 166 C.C.C. (3d) 97 (Ont.C.A.), R. v. Makhmudov, 2007 ABCA 248, and R. v. Sipes, 2011 BCSC 1763 at paras. 178-201.
[16] The seizure power of a peace officer under s. 489(2) appears to be very broad. A peace officer is permitted, while in the course of his or her duties, to seize without a warrant any item that the officer reasonably believes will afford evidence of a criminal offence. Remarkably, there is very little case law addressing the scope of this provision. From the few cases that exist, it appears that the section has been mainly used to justify the seizure of items observed during the course of an investigation. For example in R. v. Fedan, 2016 BCCA 26 and in R. v. Didechko, 2015 ABQB 642, the police relied upon s. 489(2) to seize vehicles that had been involved in fatal collisions. In both cases, the vehicles were found at the scene of an accident and it was clear that the vehicles would provide evidence of the offences under investigation. Similarly, in R. v. Jackson, 2005 ABCA 430, a police officer investigating a stabbing was lawfully present in the accused’s bedroom when he spotted a boot with blood on it. He relied on s. 489(2) to seize the boot.
[17] Conversely, s. 489(2) was found not to authorize the seizure of drugs from the closed trunk of a car that had been left in a public space because the drugs were not in “plain view”, see R. v. Frieburg, 2013 MBCA 40. As well, in R. v. Brar, 2011 BCSC 1098, the police sought to rely on s. 489(2) to seize clothing from accused persons who were detained by police in relation to a murder investigation. The Court held that the evidentiary value of the clothing items was not readily apparent and that therefore the seizure was not in “plain view.”
[18] One issue not addressed in any of the case law provided is whether the s. 489 seizure power applies to a scenario where the police seize an item that is on an accused person. Particularly, none of the case law provided addresses whether the taking of an item of clothing off a person constitutes a “search” as opposed to simply a “seizure.” If the removal of clothing from a person constitutes a “search”, s. 489(2) is inapplicable as it only authorizes a seizure simpliciter.
Analysis
[19] Section 8 of the Charter protects against “unreasonable search or seizure” [emphasis added]. Clearly, the two concepts, while related, are different. However, the line between a “search” and a “seizure” is not necessarily clear and obvious. Indeed, in many cases, the terms are used interchangeably, see for example R. v. Miller (1987), 38 C.C.C. (3d) 252 (Ont.C.A.). Another example is found in R. v. Backhouse, (2005) 4937 (ONCA), where Rosenberg J.A., in discussing the scope of the power to search incident to arrest, noted:
[50] …One of the arresting officers, upon arriving at the police station, searched the appellant. The arresting officer seized the appellant’s clothing and provided him with a garment to wear. After this search, the appellant asked to speak to his lawyer.
[85] For a search incident to arrest to be lawful it must meet three conditions. The arrest must be lawful. The search must be incident to the arrest, i.e. related to the reasons for the arrest itself. Finally, the search must not be conducted in an abusive fashion. In my view, the seizure of the appellant’s clothing was a lawful search.
[88] In my view, even if the seizure of the appellant’s clothing was a strip search governed by Golden, the Crown has established its reasonableness…
[90] That said, I would not want to be taken as holding that all of the Golden conditions necessarily apply to the type of seizure that occurred in this case. [Emphasis added]
[20] Similarly, in addressing the scope of protection afforded by s. 8 of the Charter, Penney, Rondinelli and Stribopoulos, in Criminal Procedure in Canada (Canada: LexisNexis Canada Inc. 2011) write as follows at p. 146:
Nothing actual turns, therefore, on whether an intrusion is characterized as a “search” or a “seizure.” Linguistically speaking, one of these terms may be better suited to the factual circumstances of a case than the other, but there is no jurisprudential difference between the two. If government intrudes on an applicant’s reasonable expectation of privacy, then it has conducted a “search or seizure.” The court must then go on to decide whether the intrusion was reasonable.
[21] As such, in assessing the scope of the s. 8 Charter protection it matters not whether the state conduct amounts to a “search” or “seizure”, or both. However, in assessing the scope of s. 489(1) and (2) of the Criminal Code, the distinction is crucial. Indeed, in R. v. Bottineau, supra, at para. 74, the Court of Appeal explicitly recognized:
Section 489(2) does not authorize a search. It does, however, expand the seizure powers beyond the material identified in a warrant to, among other things, material that “will afford evidence in respect of an offence”.
[22] What then is the distinction between a “search” and a “seizure” for the purpose of s. 489(1) and (2) of the Criminal Code?
[23] I start with first principles. In Hunter v. Southam, [1984] 2 S.C.R. 145 at p. 159, the Supreme Court of Canada recognized that s. 8 of the Charter protects persons not things. The touchstone of the right is the reasonable expectation of privacy. “Privacy” in this constitutional sense is to be interpreted in a broad and liberal fashion. It is a normative standard not that is not purely descriptive, see R. v. Edwards, [1996] 1 S.C.R. 128 and R. v. Tessling, 2004 SCC 67 at para. 42.
[24] In R. v. Evans, [1996] 1 S.C.R. 8 at paras. 3-4, Sopinka J., for the majority, discussed the meaning of a “search” as follows:
I agree with Major J. that not every investigatory technique used by the police is a "search" within the meaning of s. 8. In particular, I agree with Major J.'s view that the Court must inquire into the purposes of s. 8 in determining whether or not a particular form of police conduct constitutes a "search" for constitutional purposes.
What then is the purpose of s. 8 of the Charter? Previous decisions of this Court make it clear that the fundamental objective of s. 8 is to preserve the privacy interests of individuals. As this Court stated in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 160, the objective of s. 8 of the Charter is "to protect individuals from unjustified state intrusions upon their privacy". Clearly, it is only where a person's reasonable expectations of privacy are somehow diminished by an investigatory technique that s. 8 of the Charter comes into play. As a result, not every form of examination conducted by the government will constitute a "search" for constitutional purposes. On the contrary, only where those state examinations constitute an intrusion upon some reasonable privacy interest of individuals does the government action in question constitute a "search" within the meaning of s. 8.
[25] In Evans, supra, the Supreme Court ultimately decided that police conduct involving a knock on the front door of a home for the purpose of smelling for marijuana was a “search” within the meaning of s. 8 of the Charter. A similar result is found in R. v. MacDonald, 2014 SCC 3, where the Supreme Court held that nudging a door open for the purpose of seeing what an accused was holding would constitute a “search” attracting Charter scrutiny. See also R. v. A.M., 2008 SCC 19 and R. v. Kang-Brown, 2008 SCC 18, both of which confirm that the use of a “sniffer-dog” constitutes a “search.”
[26] In R. v. Tessling, 2004 SCC 67, supra, at para. 18, the Supreme Court again discussed the concept of “search” as it related to the use of FLIR technology. Speaking for the Court, Binnie J. explained:
In the result the right to be free from examination by the state is subject to constitutionally permissible limitations. First, “not every form of examination conducted by the government will constitute a ‘search’ for constitutional purposes. On the contrary, only where those state examinations constitute an intrusion upon some reasonable privacy interest of individuals does the government action in question constitute a ‘search’ within the meaning of s. 8”; Evans, supra, at para. 11. It is only “[i]f the police activity invades a reasonable expectation of privacy, [that] the activity is a search”; R. v. Wise, [1992] 1 S.C.R. 527, at p. 533. Second, as the language of s. 8 implies, even those investigations that are “searches” are permissible if they are “reasonable”. A search will not offend s. 8 if it is authorized by a reasonable law and carried out in a reasonable manner: R. v. Caslake, [1998] 1 S.C.R. 51; R. v. Collins, [1987] 1 S.C.R. 265.
[27] These cases direct that a broad and purposive approach must be used in determining what constitutes a “search.” They do not, however, directly assist in determining the difference between a “search” and a “seizure”.
[28] In this regard, I turn to two early s. 8 decisions of the Supreme Court; R. v. Pohoretsky, [1987] 1 S.C.R. 295 and R. v. Dyment, [1988] 2 S.C.R. 417. In Pohoretsky, supra, a police officer asked a doctor to take a blood sample directly from a suspect who was in an incoherent and delirious state. The Court found that the taking of the sample constituted a search and seizure that warranted Charter scrutiny. In Dyment, supra, a medical doctor held a vial under the unconscious accused’s head and collected a free-flowing sample of the blood that was dripping from a wound. The doctor later handed over the sample to a police officer. The Supreme Court held that while the receipt of the sample from the doctor did not amount to a search, it nonetheless constituted a seizure warranting Charter scrutiny.
[29] In my view, these two decisions provide some implicit assistance in discerning between the concepts of “search” and “seizure.” Both cases involve the seizure of the same item, the suspect’s blood. In both cases, the suspect’s blood was seized for the purpose of testing it for further evidence. The key difference between the cases is that in Pohoretsky, the state was involved in taking the blood directly from the accused, whereas in Dyment, the blood was free flowing and collected independently from state involvement. Clearly, the nature of the state conduct involved and the degree of personal privacy implicated served to create a factual and legal distinction between these two cases.
[30] Building on these cases, I turn to two more recent cases dealing with the seizure of clothing. The first case is R. v. Adam, 2012 ABPC 77, where the accused was initially brought to hospital as a victim of a shooting. During medical treatment, his clothing was turned over to police who, in conducting an inventory search, discovered cocaine. At trial, the accused challenged the lawfulness of the seizure. The trial judge held that the police had a valid basis under s. 489(2) to seize the clothing from the hospital as evidence in relation to the shooting. The trial judge went on to consider the validity of the subsequent inventory search of the clothing and found that it too was justified in accordance with R. v. Nicolosi and R. v Wint, 2009 ONCA 52.
[31] In the second case, R. v. Pickton, 2006 BCSC 1098, the accused had been taken to hospital suffering from stab wounds. His clothing had been removed by hospital staff and turned over to police. The case was investigated but charges were eventually stayed. The police never returned the clothing. Years later when the accused was investigated for a number of homicides, the clothing was tested and found to contain DNA evidence. In examining the legality of the seizure, the Court noted that at the time, s. 489(2) had not been enacted and that as a result, the police did not have authority to seize the clothing from the hospital staff. Implicitly, the Court held that the seizure would have been justified under s. 489(2) if it had been in force at the time.
[32] In neither Adam nor Pickton, supra, did the police remove clothing that was being worn by a person. This observation leads me to the fundamental question in this case; does the fact that the accused was wearing the clothing turn this matter into a search and seizure rather than a seizure alone? In my view it does. Applying a broad and purposive interpretation to this question, I find that the removal of clothing from a person constitutes a search and not simply a seizure. I say this for a number of reasons. First, the non-consensual removal of clothing from a person interferes with the personal dignity, autonomy and privacy of the person. In R. v. Golden, 2001 SCC 83, the Supreme Court of Canada examined the propriety of strip searches. The Court, at para. 47, held that a strip search involved:
… the removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person’s private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments.
[33] At para. 86, the Court noted the extremely intrusive nature of strip searches:
Strip searches are thus inherently humiliating and degrading for detainees regardless of the manner in which they are carried out and for this reason they cannot be carried out simply as a matter of routine policy. The adjectives used by individuals to describe their experience of being strip searched give some sense of how a strip search, even one that is carried out in a reasonable manner, can affect detainees: “humiliating”, “degrading”, “demeaning”, “upsetting”, and “devastating” (see King, supra; R. v. Christopher, [1994] O.J. No. 3120 (QL) (Gen. Div.); J. S. Lyons, Toronto Police Services Board Review, Search of Persons Policy -- The Search of Persons -- A Position Paper (April 12, 1999)). Some commentators have gone as far as to describe strip searches as “visual rape” (P. R. Shuldiner, “Visual Rape: A Look at the Dubious Legality of Strip Searches” (1979), 13 J. Marshall L. Rev. 273). Women and minorities in particular may have a real fear of strip searches and may experience such a search as equivalent to a sexual assault (Lyons, supra, at p. 4). The psychological effects of strip searches may also be particularly traumatic for individuals who have previously been subject to abuse (Commission of Inquiry into Certain Events at the Prison for Women in Kingston, The Prison for Women in Kingston (1996), at pp. 86-89). Routine strip searches may also be distasteful and difficult for the police officers conducting them (Lyons, supra, at pp. 5-6).
[34] The Court ultimately concluded that a strip search could be conducted incident to arrest, but only in certain limited circumstances. In this manner, the Court attempted to strike a balance recognizing the high degree of intrusiveness of a strip search while addressing the legitimate need to protect officer safety and obtain evidence.
[35] While the removal of the sweatshirt in this case clearly does not meet the definition of a strip search in the Golden, supra, sense, the distinction is one of degree. It is not apparent from the record before me, but it is readily foreseeable that an accused could have had nothing on under a sweatshirt. Similarly, it is also readily foreseeable that in different circumstances instead of seizing a sweatshirt, the officer could have seized the accused’s pants, leaving him dressed only in his underwear, assuming he was wearing underwear.
[36] While the removal of outer clothing is not nearly as intrusive as a strip search, it nonetheless engages similar privacy concerns and runs the objective risk of causing a degrading, humiliating or traumatic impact on the person subject to the search.
[37] In this sense, labelling the taking of the sweatshirt a “search and seizure” is more consistent with the purpose of s. 8 of the Charter, namely the protection of the person’s privacy interests.
[38] While it is true the sweatshirt was “seized”, that is not the complete analysis. Mr. Ricciardi’s person was searched in order to effect the seizure. In this sense, this case is more analogous to the search and seizure of the blood from the accused in Pohoretsky than it is the simple seizing of blood from the doctor in Dyment. Mr. Ricciardi did not consent to the removal of the sweatshirt. It was removed from him with the “assistance” of more than one police officer. This was done inside a courtroom while the accused was in custody. It was also done after a request to invoke photography as a less intrusive means was denied by the preliminary inquiry justice. This is a categorically different scenario than an officer finding a sweatshirt on a bench in a public park, or perhaps inside a prisoner’s dock in a courtroom.
[39] I note in this regard that the cases dealing with the seizure of bodily samples from an accused have generally used the search incident to arrest framework to assess the validity of the seizure, see R. v. Stillman, [1997] 1 S.C.R. 607, which examined that taking of bodily samples and impressions incident to arrest and R. v. Saeed, 2016 SCC 24, which examined the legality of administrating penile swabs incident to arrest. Implicit in this approach is the determination that a search has taken place.
[40] I wish to address one argument that gave me pause on this issue. The Crown argues that in a purposive sense this was simply a seizure. The police purpose was not to examine the sweater or the accused. They were not looking for evidence on, in or under the sweater. They simply wanted the sweater as they had grounds to believe it was evidence of an offence. I agree that this factor weighs in favour of labelling the taking of the sweater a “seizure” simpliciter. However, I reject the argument for the following reasons.
[41] First, I find that the different privacy interests engaged when an accused has an item taken off his or her person warrant classifying the taking as a search and seizure, notwithstanding the police purpose for the seizure. While the police purpose is a factor to be considered, it cannot, in my view, be the controlling factor. Indeed, in both Pohoretsky and Dyment, the “seizure” of the blood was for the identical purpose of having it further analyzed for evidence.
[42] Second, on the Crown’s interpretation, the police were free to seize the sweatshirt from the accused because their intention or purpose was not to search it or the accused, rather they simply wanted the sweatshirt itself seized as evidence. If, on the other hand, the police had wanted to check if the accused had a birth mark on his chest or examine the sweatshirt for a DNA stain, they could not have used the authority of s. 489(2) of the Code to remove the sweatshirt from the accused. This creates an odd inconsistency in that in all three scenarios, the sweatshirt would need to be removed and in all three scenarios, the privacy interests engaged are similar if not the same. In my view, treating all three scenarios as a search and seizure is most consistent with the purpose of s. 8 of the Charter.
[43] Third, I am concerned that permitting s. 489(2) of the Code to be used to seize clothing from individuals potentially engages other Charter rights including s. 9, s. 10(a) and s. 10(b) rights. In most cases, seizures from an accused person arise in the search incident to arrest context and therefore resort to other legal doctrines and provisions is unnecessary. However, in the presumably rare circumstance where the police are not effecting an arrest but are nonetheless seizing an item that is on a person, questions will arise regarding the scope of police powers. Section 489 does not authorize a detention, though in seizing clothing from a person, some degree of detention is virtually a necessity. Similarly, if there is a detention for the purpose of a s. 489 “seizure”, the right to be informed of the reasons for the detention as well as the right to counsel will be in play. The complexities of these intersecting Charter rights do not arise if taking of clothing in such circumstances is properly considered a “search and seizure.”
[44] Lastly, I am concerned that interpreting s. 489(2) to permit the seizure of items of clothing worn by persons will unduly and unconstitutionally broaden the scope of police powers in relation to interactions with citizens. The seizure of a jacket or knapsack believed to be tied to a criminal offence will invariably be followed by an inventory or safety search of the contents of the jacket or knapsack. Similarly, once the jacket is removed using the authority of s. 489(2), does the “plain view” doctrine apply to whatever may be observed underneath? Would s. 489(2) apply again to permit successive seizures as layers of clothing are removed and items are discovered? Simply put, there is a risk that s. 489(2) can be misused as a “roving search warrant”, and that is a purpose well beyond the proper scope of the section.
Conclusion
[45] In my view, the broad and purposive interpretation of privacy rights in the s. 8 Charter context require that the taking of the sweatshirt be viewed as a “search and seizure.” To give effect to the Crown’s argument would be to interpret s. 489(2) too broadly and would raise concerns about the scope of police powers. While the seizure power in s. 489(2) of the Code is broader than the common law “plain view” doctrine, Parliament was careful to not create a warrantless search power. The taking of the sweatshirt from Mr. Ricciardi engages significant privacy concerns that satisfy me that the best approach is to classify what happened here as a search and seizure.
[46] The search of the accused and the seizure of the sweatshirt therefore falls outside the scope of s. 489(2) and violates s. 8 of the Charter.